si! 

11 


REPLY  TO  THE  STATEMENT 


G.  H.  HARRIS 


Dated  Berkeley,  September  28th,  1886. 


IN  REFERENCE  TO  THE 


FORSTER   CONTRACTS 

AND  LOCATIONS. 


BY  THKO.  WAGNER, 

Attorney  for  Forster  Claimants  under  D.  !•>.  Kurtz 


To  the  Hon.  Board  of  Regents 

of  the  University  of  California. 

GENTLEMEN: 

I  have  received  a  copy  of  the  printed  statement  of  G. 
H.  Harris,  Land  Agent  of  the  University  of  California,  dated 
Berkeley,  September  28,  1886,  and  addressed  to  the  Hon.  A.  L. 
Rhodes,  of  Land  Committee. 

This  statement  was  evidently  prepared  in  reply  to  my 
memorial.  Mr.  Harris  starts  out  with  giving  in  his  statement 
a  copy  of  the  application  and  contract  of  John  Forster,  that  of 
Francisco  Forster  being  admitted  to  be  the  same  in  all 
respects,  except  the  description  of  the  land  and  amount  of 
acres. 

In  conclusion  of  his  statement,  Mr.  Harris  says  that  the 
For«ters  made  their  application  to  the  Land  Agent  of  the  Uni- 
versity, but  that  the  University  did  not  undertake  to  sell  the 
land  applied  for  and  that  the  Land  Agent  simply  acted  as  the 
locating  agent  and  was  governed  by  the  statement  of  the  Forsters. 
that  the  tracts  contained  2700.88  acres  which  they  contracted  to 
accept  for  2720  acres.  I  claim  that  the  statement  that  the  Uni- 
versity did  not  undertake  to  sell  the  land  to  the  Forsters,  is 
ridiculous,  ;md  not  true  in  fact. 

The  application  of  John  Forster,  a  copy  of  which  is  printed 
in  Mr.  Harris'  statement  on  page  1,  shows  upon  its  face  that 
Forster  applied  to  purchase  and  locate  certain  lands  from  the 
University,  and  it  is  self  evident  that  there  can  be  no  purchaser 
unless  there  is  a  seller.  The  University  did,  in  consideration  of 
the  payments  made  and  agreed  to  be  made,  agree  to  sell  to  the 
Forsters  the  land  applied  for  by  them,  provided  it  be  land 
subject  to  location  by  them  and  free  from  adverse  claims. 

For  whom  was  the  Land  Agent  acting  as  the  locating 
agent  ?  Was  it  for  the  University  or  the  Forsters  ?  By  whom 
was  he  employed?  Who  paid  him  for  his  services?  The 
answer  must  be  the  University  and  not  the  Forsters.  Therefore, 
Mr.  Harris'  point  in  this  respect,  seems  to  me  like  drawing  a 
distinction  without  a  difference. 

Mr.  Harris  makes  the  astounding  assertion  that  ihe  Land 
Agent  was  governed  by  the  Forsters'  statement  that  said  tracts 
contained  2700.88  acres.  It  needs  only  an  examination  of  the 


application  of  John  Forster  printed  upon  the  first  page  of  his 
statement,  which  says  "  containing  2268.78  acres  according  to 
the  returns  of  the  U.  S.  Surveyor  General"  Now  under  the 
Strobel  survey  returned  by  the  Surveyor  Genl.  said  tracts 
w>re  said  to  contain,  according  to  the  returns  of  the  U.  S. 
Surveyor  General  2268.78  acres,  and  the  tracts  included  in 
Francisco  Forster's  application  were,  under  that  survey,  returned 
by  the  U.  S.  Surveyor  Genl.  as  containing  431.60  acres.  This 
is  not  denied  by  Mr.  Harris,  although  he  does  not  state  it. 

The  University  can  only  select  its  lands  according  to  the 
government  surveys,  and  if  the  Forsters  had  at  that  time  caused 
a  correct  private  survey  to  be  made,  and  had  applied  to  the  Land 
Agent  of  the  University  for  the  land  according  to  such  private 
survey,  would  their  application  have  bern  approved  ?  Or  would 
the  University  have  applied  for  the  land  according  to  such 
private  survey  ?  Most  assuredly  the  Land  Agent  would  have 
done  neither — he  would  have  returned  the  applications  with  a 
statement  that  such  subdivisions  did  not  exist.  The  University 
was  governed  in  its  selection,  and  the  Forsters  were  governed 
in  their  application,  by  the  returns  of  the  U.  S.  Surveyor 
General;  and  if  those  returns  were  wrong  it  was  manifestly  a 
mutual  error  of  fact,  as  well  by  the  University  as  by  the  Forsters. 
So  the  statement  of  Mr.  Harris  that  the  University  was  nut  a 
party  to  the  errors  of  selection  is  manifestly  an  error. 

The  land  agent  further  says  that  the  Forsters  made  affidavits 
that  there  were  no  adverse  claims  to  said  land  to  prevent  its 
selection  under  the  agricultural  grant.  This  statement,  while 
strictly  true,  is  yet  very  unfair  for  it  might  lead  to  the  inference 
that  the  Forsters  had  concealed  the  adverse  claim  of  Kurtz. 
The  Forsters'  affidavits  were  made  under  the  Strobel  or  rejected 
survey  and*  not  under  the  present  survey.  An  examination  of 
the  map  of  the  Strobel  survey,  Exhibit  "A"  of  my  memorial 
shows  that  Kurtz's  selections  of  320  acres  under  Strobel's  survey 
in  noway  conflicted  with  the  University  selections  ;is  applied 
for  under  the  Strobel  survey.  The  Forsters  have  made  no  new 
application  under  the  present  or  Yon  Leicht  survey,  but  the 
land  agent  has  made  those  selections  upon  his  own  responsi- 
bility or  by.  order  of  the  Board  of  Regents  which  action  does  not 
tally  at  all  with  his  claim  that  the  land  agent  is  acting  only  as 
the  locating  agent  for  the  applicant. 

On  page  2  of  his  Statement  Mr.  Harris  purports  to  give  a 
statement  of  the  amounts  paid  by  the  Forsters  but  he  studiously 
avoids  giving  the  dates  of  payments  since  December  2d,  1872, 
so  that  from  his  statement,  without  other  explanation,  anyone 


not  familiar  with  the  facts  would  infer  that  the  amount  ^  of 
$4500  and  $938.50  were  paid  at  one  time  while  the  fact  is 
that  the  payments  were  made  upon  the  dates  specified  in  im- 
memorial. Exhibit  No.  1  of  my  memorial  is  an  exact  copy  of  a 
statement  furnished  me  by  Mr.  Harris  himself  with  the  exception 
of  the  heading:  *•  Account  of  amount  claimed  under  Strobel 
survey. " 

It  will  be  seon  that  the  total  amount  of  credits  of  $8944  s 
the  same  in  both  statements,  viz. :  $7448  in  case  of  John  Forster 
and  $1496  in  case  of  Francisco  Forster,  which,  if  added  together 
make  the  amount  of  $8944. 

The  statements  of  Mr.  H  irris  in  regard  to  Mr.  Livermoore, 
and  conferv-nces  between  the  Forsters,  Mr.  Mhoon  and  him- 
self, and  Mr.  Le.ich,  have  no  bearing  whatever  upon  the  matter 
at  issue. 

After  this  follow  proceedings  of  the  Board  which  I  assume 
to  be  correct.  Mr.  Harris  does  not  include  in  his  statement  a 
copy  of  my  petition  to  the  Board  of  Regonts,  asking  them  to 
join  with  the  Forsters  in  a  petition  for  a  resurvt-y  of  said  Town- 
ship, but  the  Report  of  the  Land  Committee  on  page  6  of  said 
statement  substantially  contains  the  facts  presented  in  the 
petition.  It  will  be  seen  that  the  Board  of  Regents  itself  asked 
for  a  re-survey  "  to  secure  to  your  University  proper  credit  for 
"  lands  which  by  having  no  existence  in  fact,  are  improperly  locate  / 
"  and  charged  thereto."  Mr,  Harris  also  on  page  6  of  his 
statement  publishes  a  copy  of  the  Honorable  Commissioners' 
decision,  declining  to  order  re-survey,  bue  he  does  not  publish 
a  copy  of  the  subsequent  decision  of  the  Honorable  Commissioner, 
which  ordered  the  re-survey. 

Mr.  Harris'  statement  on  page  7  shows  that  at  the  meeting 
of  May  23d,  1884,  the  Land  Committee  was  authorized  lo 
prepare  a  form  of  deed  to  be  executed  by  the  Governor  re-con- 
veying certain  lands  in  Tp.  9,  South  R,.  7  W.  S.  B.  M.,  but  Mr. 
Harris  does  not  state  that  such  deed  was  prepared  and  executed 
by  the  Governor  re-conveying  to  the  United  States  all  the  land 
excluded  by  the  Von  Leicht  survey  from  said  Township.  In 
order  to  complete  Mr.  Harris'  statement  I  now  assert  that  sucn 
is  the  fact  and  here  the  enquiry  seems  proper  if  the  University 
could  charge  the  Forsters  tor  land,  which  by  its  own  act  it  has 
re-conveyed  to  the  United  States,  or  retain  money  in  their 
hands  which  was  paid  as  interest  upon  supposed  land  which 
they  have  re-conveyed  to  the  United  States,  and  for  which  they 
have  received  credit  from  the  United  States  ? 


4 

The  resolution  of  the  Hon.  Board  o'f  Regents  found  on 
page  8  of  Mr.  Harris3  statement  which  was  adopted  at  the  meet- 
ing of  August  14,  1885,  authorizes  the  land  agent  to  procure  the 
cancellation  of  the  old  2620.38  acre  selection  and  list  under  the 
Strobel  survey,  upon  condition  that  the  University  be  permitted  to 
select  under  its  Grant  the  lands  in  said  selection  which  appear 
upon  the  survey  of  said  township,  approved  September  2,  1884, 
amounting  to  1626.61  acres,  andlo  select  also  under  said  Grant  lands 
to  the  amount  of  993.77  acres,  the  said  two  selections  to  be  in  lieu 
of  said  jirst  mentioned  selection.  The  Land  Agent  under  that 
Resolution  was  also  instructed  in  that  Resolution  "  to  apply  for 
an  amendatory  selection  of  1626.61  acres  being  the  tracts  to 
which  the  University  is  entitled"  This  admits  that  the  University 
was  not  entitled  to  the  993.77  acres,  and  if  it  was  not  entitled 
to  them,  it  could  not  sell  them  to  the  Forsters,  or  retain 
interest  paid  upon  what  it  was  not  entitled  to,  and  which  it 
could  not  convey. 

On  April  8, 1888,  at  a  meeting  of  the  Board  of  Regents  the 
Finance  Committee  submitted  a  statement  from  the  Land  Agent 
(see  page  9,  of  Mr.  Harris'  Statement),  wherein  Mr.  Harris 
charges  the  Forsters  with  1726.23  acres  whereupon  the  same 
page,  just  preceding  that  statement,  it  appears  that  the  Hon. 
Co  ninissioner  >>nly  allows  1626.61  acres  to  the  University  under 
its  selections  and  by  the  Resolution  of  the  Hon.  Board  of  Aug. 
14th  on  page  8,  it  appears  that  the  Board  of  Regents  only  claimed 
1626.61  acres. 

Mr.  Harris  therefore  evidently  made  an  error  of  100  acres  in 
his  calculations.  ' 

Mr.  Harris  arrives  at  this  result  by  subtracting  993.77 
acres  from  2720  acres. 

The  Forslers  had  agreed  to  accept  2700.38  acres,  which  they 
originally  applied  for,  for  2720  acres  but  all  the  land  they  applied 
for  was  not  listed  to  the  University,  even  under  the  old  survey. 

In  the  Hon.  Commissioner's  letter  to  the  Register  and 
Receiver  at  Los  Angeles,  dated  Washington,  D.  C.,  June  26, 
1885,  and  quoted  upon  pages  8  and  9  of  Mr.  Harris'  statement, 
it  is  shown  that  only  2620.38  acres  were  e\er  listed  to  the  Uni- 
versity of  the  land  included  in  the  Forsters'  original  application. 
It  seems  that  the  N.  J  of  the  N.  E.  J  of  section  4  was  for  some 
reason  never  listed  consequently  the  University  never  had 
2700.38  acres  even  under  the  old  survey  to  sell  to  the  Forsters. 

In  order  that  there  may  be  no  doubt  upon  this  point  I  have 
procured  from  Mr  Harris  the  following  certificates: 


5 

Application  No.  412  by  Francisco  Forster,  made  Feb.  17, 1872, 
under  the  grant  of  150,00  acres,  is  as  follows: 

Tract  Section  15,  and  Lot  of  2  of  Section  22,  Tp.  9,  S.  R 
7  W.,  S.  B.  M.  containing  431.60  acres,  accepted  for  440  acres. 

The  above  is  a  correct  description  of  the  original  appli- 
cation. 

J.  Ham  Harris 

Land  Agent. 

Application  No.  411  by  John  Forster,  made  Feb.  17,  1872, 
under  the  grant  of  150,000  acres,  is  as  follows: 

N.  E.  J  and  Frl  S.  J  of  Section  4,  Section  3,  Frl.  W.  £  of 
Section  2,  S  E  J  of  N.  E.  J  and  Frl.  S  J  of  Section  9,  Section 
10,  and  Frl.  W.  J  of  Section  11,  and  Lots  1,  2  of  Section  14,  Tp. 
9,  S.  R.  7  W.,  S.  B.  M.  containing  2268.78  acres,  accepted  for 
2280  acres.  The  above  is  a  correct  description  of  the  original 
application. 

J.  Ham  Harris 

Land  Agent. 

The  North  Half  of  the  North  East  Quarter  of  Section  Four 
(4),  Tp.  9,  S.  R.  7  W.  S.  B.  M.  said  to  contain  eighty  acres, 
was  not  listed. 

J.  Ham  Harris 

Land  Agent. 

It  appears  therefore  from  this,  that  the  Forsters  were  charged 
with  principal  and  interest  for  eighty  acres  of  the  land  originally 
applied  for  by  them,  which  the  University  never  owned  and 
never  applied  for  and  it  must  be  plain  that  this  was  an  error. 

As  before  stated,  the  Forsters  had  agreed  to  accept  2700.38 
acres,  which  they  originally  applied  for,  for  2720  acres,  or,  in 
other  words,  they  had  agreed  to  pay  the  University  for  19.62 
acres  more  than  the  number  of  acres  which  returns  of  the  U.  S. 
Surveyor  General  showed  to  be  in  the  tracts  as  originally  applied 
for.  This  was  done  and  exacted  upon  the  supposition  that  by 
reason  of  having  to  accept  fractional  subdivisions  less  than  40 
acres,  as  40  acres  the  University  would  be  charged  with  the 
excess. 

Under  the  new  survey,  however,  the  University  is  not 
charged  with  such  excess,  but  only  with  the  actual  number  of 
acres  selected,  hence  it  ought  not  to  charge  excess  to  the 
Forsters,  and  even  if  the  Hon.  Board  of  Regents  should  be  dis- 


posed  to  stand  upon  the  strict  letter  of  the  contract,  it  would 
not  apply  in  this  case,  for  the  reason  that  by  th  >  re-survey  and 
subsequent  action  of  the  Board,  the  cont  a  t  is  entirely  altered 
from  what  it  was  when  the  Forsters  agreed  to  ac3ept  2700.38 
acres  for  2720  acres.  If  I  a^rea  to  a-jc^p"  2700.38  acres  for  2720 
acres,  that  does  not  imply  that  by  reason  thereof  I  must  accept 
1626.61  acres  ;is  1646  acres  There  is  110  reasonable  hypothesis 
upon  which  such  a  claim  could  be  based.  The  utmost  that 
could  be  claimed  with  any  show  of  reason  at  all  would  be  a 
proportionate  amount  of  acres  which  bears  the  same  proportion 
to  19.62  acres  as  1626.61  a  "res  actually  listed  now  bears  to 
2700  38  acres  originally  applied  f  jr.  Such  proportionate  num- 
ber of  acres  would  be  12.11  acres. 

At  this  meeting  of  the  Hon.  Board  of  Regents  of  April  8, 1886 
the  matter  was  referred  to  the  Finance  Committee  with  power  to 
settle.  O  i  May  2oth  the  Finance  Comrn  ttee  presented  a  report 
quoted  on  page  10  of  Mr.  Harris'  statement  which  was  evidently 
based  upon  the  erroneous  calcu'ation  by  the  Land  Agent  for 
1726.23  acres  when  it  should  have  heen  based  upon  the  calcula- 
tion of  KJ26.61  acres,  and  that  error,  I  believe,  is  the  only  real 
cause  now  which  stands  in  the  way  of  a  settlement,  for  upon 
consultation  with  my  clients  in,  order  to  bring  this  matter  to  an 
end  I  am  instructed  to  wit  .draw  the  claim  of  D.  B.  Kurtz  to 
Lots  4  and  5  of  Sec  10,  so  as  to  leave  the  University  selections 
intact,  as  they  now  stand,  if  thereby  the  matter  can  be  finally 
closed  up  at  the  next  meeting  of  your  honorable  Board. 

On  page  5  of  my  memorial,  in  stat;ng  the  amount  paid  the 
University,  May  1,  1872,  the  sum  is  given  as  $2720.  This  is  an 
er.-or,  and  should  be  $2888,  which  would  reduce  the  amount  of 
the  Forsters'  indebtedness  to  that  extent  and  interest  on  the 
difference.  Mr.  Harris  has  not  presented  any  basis  or  shown  to 
us  how  he  arrives  at  the  result  of  $4373.90  as  being  due  on  May 
15,  1886. 

All  we  contend  for,  however,  is  the  princ'ple  that  payments 
are  to  be  credited  when  made,  so  far  as  the  interest  is  then  due 
upon  the  interest,  and  any  excess  uponthe  principal. 

We  are  willing  to  concede  anything  re  i  sonable  so  long  as  that 
principle  is  admitted  to  govern  the  settlement,  and  when  that  is 
done  the  balance  is  merely  a  matter  of  calculation. 

If  your  Hon.  Board  will  concede  the  principle  contended 
for  by  us,  we  will  abide  the  result  and  pay  the  amount  due  at 
once.  There  is  no  practical  discrepancy  in  the  amount  of 


piymeuts  claimed  by  the  Forsters,  and  Mr.  Harris'  statement, 
except  that  Mr.  Harris  debits  them  with  interest,  which  by 
reason  of  over-payments  made  by  the  Forsters,  they  did  not 
owe. 

In  order  to  bring  the  matter  to  a  settlement,  if  possible,  I 
present  herewith  a  table  of  calculations  of  the  amount  due  to 
December  1,  1886,  which  I  have  endeavored  to  make  inharmony 
with  what  I  conceive  to  be  Mr.  Harris'  system  of  accounts.  If 
the  matter  can  be  settled  at  the  next  meeting  of  your  Hon. 
Board,  we  will  p  «y  the  amount  shown  to  be  due  by  this  state- 
ment at  once,  viz. : 

STATEMENT 

1626.61  ACHES. 
1872 

May     1—1626.61  acres  at  $5 $8,13305 

By  interest  on  80$  ($6,506.44)  lOjg 433  76 

8,566  81 

Dec.     2— To  Payments 2,28000 

608  00 

44000 

11750        3,44550 

Bal.  due  January  1,  1873 5,121  31 

By  1  year's  interest  to  January  1,  1874. . .  512  13 

5,633  44 
1873 

Sept.  11— To  Payments 912  00 

176  00        1,088  00 

4,545  44 
By  1  year's  interest  to  January  1,  1875. . .  454  54 

4,999  98 

1874 

Oct.    19— To  Payments 912  00 

17600        1,08800 

Bal.  due  January  1,  1875 3,911  9g 

By  1  year's  interest  to  January  1,  1876 391  19 

"    "      "          "        "        "        "1877....  391  20 

"    "      "         "        "        "        "  1878....  391  19 

"    "      "         "        "       .'«        "1879 39120        1,56478 

5,476  76 


8 

1876 
July  20— To  Payment 352  00 

1877 

May   10— To  Payment 176  00 

58  50 

1878 
Jan.    27— To  Payment 2,73600        3,32250 

Bal.  due  January  1,  1879 2,154  26 

By  interest  from  January  1,  1879,  to  Dec.  1,  1886. 

7  years  and  11  months,  10$ 1,705  45 

Bal.  due  December  31,  1S86 $3,859  71 


Respectfully  submitted, 

THEO.  WAGNER, 
Attorney  for  Forster  heirs  and  claimant  under  D.  B.  Kurtz. 


